I. Raymond KREMER, Charles P. Mirarchi, Jr. and Eugene Gelfand, et al. and The Pennsylvania Conference of State Trial Judges v. Alexander F. BARBIERI, Court Administrator of Pennsylvania and Robert E. Casey, State Treasurer of the Commonwealth of Pennsylvania
Supreme Court of Pennsylvania
June 24, 1980
417 A.2d 121
Argued April 24, 1980.
Howland W. Abramson, Philadelphia, Vincent X. Yakowicz, Harrisburg, Charles W. Johns, Pittsburgh, for appellees.
William M. Young, Jr., Harrisburg, for amicus curiae Pa. Bar Assn.
Stephen M. Feldman, Philadelphia, for amicus curiae Philadelphia Bar Assn.
William E. Woodside, Harrisburg, for amicus curiae.
PER CURIAM:
Order affirmed.
LARSEN, J., filed a dissenting opinion in which FLAHERTY, J., joins.
LARSEN, Justice, dissenting.
I dissent.
On January 30, 1979, the Commonwealth Compensation Commission (Commission) issued a “Report of the Commonwealth Compensation Commission on Compensation Adjustments for Cabinet Officers, Legislators and Legislative Officers, Justices and Judges.” This report recommended, inter alia, that “annual salaries of justices and judges . . . be increased by 15 percent, which figure represents an annual increase of seven and one-half percent for the next two years.” Report, 9 Pa.Bull. 1029, 1033 (March 24, 1979).1
The Commission‘s recommendation for a salary increase was made after exhaustive study and the resultant determination that the compensation of the judiciary had suffered serious and substantial diminution as a result of the inexorable inflationary spiral. In November, 1972, common pleas
The General Assembly voted down the recommendation of the Commission to increase judicial salaries.2 On May 19, 1979, these proceedings were initiated in the Commonwealth Court. Petitioners, individual judges of the Courts of Common Pleas of several counties, and the Pennsylvania Conference of Trial Judges, sought a writ of mandamus against respondents Alexander F. Barbieri, Court Administrator of Pennsylvania, and Robert E. Casey, State Treasurer, seeking an order compelling respondents to, respectively, submit requisition vouchers and to issue checks for amounts reflecting an adequate compensation. The petition asserted the trial judge‘s salaries were constitutionally inadequate and that the legislature‘s failure to correct the inadequacy required the exercise of the inherent powers of the courts to determine what salaries are reasonably necessary to prevent impairment of the efficient administration of justice and to order such salaries paid. On January 18, 1980, the Commonwealth Court granted judgment for respondents upon their motion for summary judgment finding the judges’ salaries were not constitutionally inadequate.3 This direct appeal followed. I disagree with the Commonwealth Court and would therefore reverse.
Justices, judges and justices of the peace shall be compensated by the Commonwealth as provided by law. Their
compensation shall not be diminished during their terms of office, unless by law applying generally to all salaried officers of the Commonwealth.
In Glancey v. Casey, 447 Pa. 77, 288 A.2d 812 (1972), this Court held that, in spite of the absence of the words “adequate compensation” from the 1968 Pennsylvania Constitution (whereas prior versions of our Constitution used such language), the legislative authority to establish the amount of judicial compensation was nevertheless limited by a requirement of “adequacy.” It was stated in Glancey, 447 Pa. at 83-84, 288 A.2d at 815:
The only limitation on the legislative authority to [fix salaries]—and that only arises by implication from the tripartite nature of our government and the importance of maintaining the independence of each of the three branches of government—is that such judicial compensation be adequate to insure the proper functioning of the judicial system in an unfettered and independent manner.
It is the constitutional duty and obligation of the legislature, in order to insure the independence of the judicial (as well as the executive) branch of government, to “provide compensation adequate in amount and commensurate with the duties and responsibilities of the judges involved. To do any less violates the very framework of our constitutional form of government.” Id., 447 Pa. at 86, 288 A.2d at 816.
To be sure, the legislature, the judiciary and the executive branch operate primarily in harmony, each cognizant of the other‘s powers, duties and respective functions. Where that harmony breaks down, however, this Court has recognized, and implemented, the judiciary‘s “inherent power to preserve the efficient and expeditious administration of Justice and protect it from being impaired or destroyed.” Commonwealth ex rel. Carroll v. Tate, 442 Pa. 45, 53, 274 A.2d 193, 197 (1971) (citations omitted).
Expressed in other words, the Judiciary must possess the inherent power to determine and compel payment of those sums of money which are reasonable and necessary
Id., 442 Pa. at 52, 274 A.2d at 197 (lengthy citations omitted). Thus, should the legislature act arbitrarily or capriciously and fail or neglect to provide payment of adequate salaries to judges or their personnel whereby the efficient administration of justice is impaired, the court “possesses the inherent power to supply the deficiency. Should such officials neglect or refuse to comply with the reasonable requirements of the court they may be required to do so by mandamus.” Leahy v. Farrell, 362 Pa. 52, 58, 66 A.2d 577, 580 (1949).
Indeed, the judiciary must have this power and must, if necessary, exercise it. The intrinsic power was recognized long ago by Mr. Chief Justice Marshall in the seminal case of McCulloch v. Maryland, 17 U.S. 316, 431, 4 L.Ed. 579 (1819) who stated for the United States Supreme Court:
“. . . the power to tax involves the power to destroy; * * *” A Legislature has the power of life and death over all the Courts and over the entire Judicial system. Unless the Legislature can be compelled by the courts to provide the money which is reasonably necessary for the proper functioning and administration of the Courts, our entire Judicial system could be extirpated, and the Legislature could make a mockery of our form of Government with its three co-equal branches—the Executive, the Legislative and the Judicial.
When manipulation of the purse strings, or atrophy of the muscles used to pull them, threatens the independence of the judiciary and the administration of the justice system, the courts must assume their responsibility and determine the reasonable financial necessities of unimpaired operation, and must implement its determination.
In the meantime, salaries for all other segments of our society has kept much better pace with inflation. For example, a survey of salaries for 21 occupations in the Philadelphia area from 1972 to 1979 reveals a low percentage of 31.6%-42.5% (for public school teachers) and a high of 81% (for members of newspaper and magazine employees union).5 Philadelphia municipal officers and employees have experienced percentage salary increases, in the same time
Salary comparisons between our trial judges, federal district court judges,7 and professionals of equal education, age and background also reveal substantial inequality.8 Clearly, given the backgrounds and competency of the majority of common pleas jurists, most could fair far better in the private sector, or in their federal counterpart. Moreover, the dilemma of the judges is exacerbated by the constitutional prohibition against engaging in the practice of law in any manner and the provision requiring judges to devote full time to their judicial duties.
Certainly, most judges have never expected their salaries to be on a par with the senior partners of the most prestigious law firms. Most did, however, expect their salaries to remain fairly stable and to at least approximately maintain their standards of living. Their expectations have not kept pace with the realities of inflation.
From the foregoing, I reach the only conclusion possible—the present salaries of the judges of the Courts of Common Pleas are constitutionally inadequate and have diminished substantially during their terms. Further, the failure of the
The legislature has acted belatedly to raise the salaries of the judges by $10,000. On October 13, 1979, the General Assembly passed House Bill 211 increasing the annual salaries of Pennsylvania trial judges to $55,000 effective December 1, 1980. I would assume, in the interests of preserving the harmony between the judicial and legislative branches as much as is possible under the circumstances, that the figure of $55,000 represented an adequate salary as of the date this action was initiated (May 19, 1979).9 I would, therefore, order respondents to requisition salaries and issue checks for petitioner‘s from May 19, 1979 (the date of filing the petition for a writ of mandamus) based upon a salary of $55,000.
Additionally, having witnessed the adverse consequences of inflation, I believe the judge‘s salaries should contain an automatic annual cost of living increase10 to enable our trial judges to keep pace with inflation and to render the occupation of judge sufficiently stable and appealing to continue to attract and maintain qualified and competent jurists. This annual adjustment of judicial salaries would place the judges on approximately equal footing with most of the
Accordingly, I would reverse the Order of the Commonwealth Court granting respondent‘s motion for summary judgment. I would further Order that respondent Barbieri requisition vouchers reflecting the increased compensation in accordance with this Opinion and that respondent Casey issue pay checks in like amount. Sadly, the majority position will continue to allow the system of justice in this Commonwealth to slide into mediocrity.
FLAHERTY, J., joins in this dissenting opinion.
APPENDIX “A”
| EMPLOYEE GROUP OR INDIVIDUAL | PERCENTAGE INCREASES IN COMPENSATION (From 1972 to 1979 except as noted) |
|---|---|
| PHILADELPHIA MUNICIPAL WORKERS (District Council #33) | 49.7% |
| PHILADELPHIA POLICEMEN | 57.8% |
| PHILADELPHIA FIREMEN | 57.8% |
| NEWSPAPER & MAGAZINE EMPLOYEES UNION (Includes Mailroom employees for the Phila. Inquirer, Bulletin, Daily News and Triangle Publs.) | 81% (A new contract effective 9/30/79 increased their wages by 7.8% from 73.2% to 81%.) |
| EMPLOYEE GROUP OR INDIVIDUAL—Continued | PERCENTAGE INCREASES IN COMPENSATION (From 1972 to 1979 except as noted)—Continued |
|---|---|
| PHILADELPHIA BUILDING AND CONSTRUCTION TRADES COUNCIL AFL-CIO MEMBERS | |
| Asbestos Workers | 51.8% (Will receive an increment of 3.3% in 1980 which will result in an increase from 48.5% to 51.8%.) |
| Boilermakers | 62.5% |
| Carpenters | 50.5% (Will receive an additional 3.5% in 1980 which will result in an increase from 47% to 50.5%.) |
| Cement Masons | 66% |
| Electricians (Local #98) | 54.4% (Will receive an increment of 3.2% in 1980 which will result in an increase from 51.2% to 54.4%.) |
APPENDIX “B”
| EMPLOYEE GROUP OR INDIVIDUAL | PERCENTAGE INCREASES IN COMPENSATION (From 1972 to 1979 except as noted) |
|---|---|
| PHILADELPHIA CITY GOVERNMENT OFFICIALS | |
| Mayor | 37.5% |
| Managing Director | 47.1% |
| Director of Finance | 47.1% |
| City Solicitor | 47.1% |
| City Rep. & Dir. of Commerce | 47.1% |
| Police Commissioner | 55.2% |
| Streets Commissioner | 55.2% |
| EMPLOYEE GROUP OR INDIVIDUAL—Continued | PERCENTAGE INCREASES IN COMPENSATION (From 1972 to 1979 except as noted)—Continued |
|---|---|
| PHILADELPHIA CITY GOVERNMENT OFFICIALS—Continued | |
| Fire Commissioner | 55.2% |
| Recreation Commissioner | 55.2% |
| Public Prop. Commissioner | 75.0% |
| Public Welfare Commissioner | 58.5% |
| Licenses & Insp. Commissioner | 75.0% |
| Records Commissioner | 72.7% |
| Water Commissioner | 42.9% |
| COMMON PLEAS JUDGES | 12.5% |
| Law clerks, court officers and judges’ secretaries | 64.6% (For period from 7/1/72 to 7/1/79 and periodic increments thereafter) |
APPENDIX “C”
(Commonwealth Compensation Commission)
COMPARATIVE INCREASES IN SALARIES OF FEDERAL AND OF PENNSYLVANIA JUDGES *
(1926 to Date)
UNITED STATES
| Date of Change | United States District Court | United States Court of Appeals | United States Supreme Court |
|---|---|---|---|
| 1926 | $10,000 | $12,500 | $20,000 |
| 1946 | 15,000 | 17,500 | 25,000 |
| 1955 | 22,500 | 25,500 | 35,000 |
| 1964 | 30,000 | 33,000 | 39,500 |
| 1969 | 40,000 | 42,500 | 60,000 |
| 1975 | 42,000 | 44,600 | 63,000 |
| 1977 | 54,500 | 57,500 | 72,000 |
| 1979 | 61,531 | 64,918 | 81,288 |
* Increase granted October, 1979
| Date of Change | Court of Common Pleas | Pennsylvania Superior Court | Pennsylvania Supreme Court |
|---|---|---|---|
| 1929 | $14,000 | $18,000 | $19,500 |
| 1947 | 16,500 | 21,000 | 23,000 |
| 1952 | 18,500 | 23,000 | 25,000 |
| 1956 | 22,500 | 28,000 | 30,000 |
| 1962 | 25,000 | 30,500 | 32,500 |
| 1967 | 30,000 | 35,500 | 37,500 |
| 1972 | 32,500 | 38,000 | 40,000 |
| 1972 | 40,000 | 48,000 | 50,000 |
| 1976 | 45,000 | 53,000 | 55,000 |
APPENDIX “D”
1978 SURVEY OF ATTORNEYS *
| Mean salary of a partner/shareholder in a firm in the Philadelphia vicinity | $58,550 |
| Mean salary of a lawyer who graduated law school before 1963 (national) | $62,300 |
| Mean salary of a male attorney 44 years of age or older (national) | $64,400 |
| Mean salary of partner in firm with 30-49 lawyers (national) | $70,450 |
| Mean salary of partner in firm 50-99 lawyers (national) | $70,318 |
| Mean salary of partner in firm with 100 or more lawyers (national) | $92,333 |
| Mean salary of attorney who graduated law school before 1963 in firm with 30-49 lawyers (national) | $108,853 |
| Mean salary of attorney who graduated law school before 1963 in firm with 50-99 lawyers (national) | $93,792 |
| Mean salary of attorney who graduated law school before 1963 in firm with 100 or more lawyers (national) | $117,208 |
* S. Langer, Compensation of Attorneys, Part II (1978), available from Abbott, Langer & Associates, P.O. Box 275 Park Forest, IL 60466